Judge yourself, my learned friends

The 2G scam has exposed the loot of the nation in full public view by some obvious villains in corrupt politicians, collusive bureaucrats and greedy companies. However, the role played by the legal community has gone largely unnoticed. Evidence suggests that lawyers across the board – in the law ministry, in India’s largest law firms and even those who work within telecom companies – also let the nation down by failing in their duty to report and perhaps even stop the scam.

Let the facts speak for themselves. On December 26, 2007, two weeks before the scam was committed on January 10, 2008, the then telecom minister, A Raja, wrote to Prime Minister Manmohan Singh, telling him that he had a meeting with the external affairs minister, where solicitor general (now attorney general) Goolam Vahanvati “was also called to explain the legal position”, based on which he was moving ahead. Vahanvati was called in because there were cases pending in court, but among the three issues that were discussed was the issuance of new licences in 2008 at 2001 prices on a first-come-first-served basis while shunning the auction route.

Raja’s access to Vahanvati was out of line considering that the law secretary and the law minister had refused Raja a legal opinion on the same matter in writing only two months earlier on November 1, 2007. This was prominently reported in The Times of India. So why did the solicitor general give Raja advice on an issue on which the law ministry had refused its opinion?

The DoT’s affidavit in the Supreme Court defending Raja’s actions also claims in Section 86 while describing the now infamous press release of January 10, 2008, that the said press release was issued “after obtaining legal advice”. Who gave this advice and why? Is this not a blatant violation of Rule 8 of Law Officer’s Conditions of Service Rule of 1972, ie, rule 8(1)(e) which states: “restrictions – (1) (a) law officer shall not: (e) advise any Ministry or Department of the Government of India or any statutory organization or any public sector undertaking, unless the proposal or a reference in this regard is received through the Ministry of Law and Justice, Department of legal affairs”.

Further, when STel challenged the arbitrary advancement of the cutoff date from October 1, 2007, to September 25, 2007, by Raja, which was the basis of the press release of January 10, 2008, government lawyers, including the attorney general himself were unable to defend Raja’s action which the high court later also found “arbitrary and illegal”.

This means that the legal advice given was not only in violation of procedure but also lacked rigour. Ideally the law officers should have told Raja that he should not advance the cutoff date arbitrarily. Had this happened, Raja would have had no option but to hold auctions to pick the winners out of the 575 applications received for 2G licences. Conversely, if the legal advice was valid, then the law officers should have defended the case in which the same press release was held illegal.

The performance of DoT’s lawyers and solicitor general Gopal Subramanium is equally lacking. The DoT’s affidavit against Prashant Bhushan’s PIL is not only weak and indefensible, but also severely compromises the Prime Minister. While the CAG report said Raja “ignored’ the Prime Minister – DoT’s affidavit says exactly the opposite. It claims in Section 94 after a detailed description that “thus not only was there no difference of opinion with the Hon’ble Prime Minister, his office was also kept fully informed of all decisions”. Heres how: On December 26, 2007, Raja again wrote a letter to the PM informing him that “it is proposed to implement the decision without further delay and without any departure from existing guidelines.” Raja went on to do exactly as he said, which led to the staggering Rs 1.76 lakh crore loss.

While no one has any doubts about the PM’s integrity, the government’s lawyers have actually sealed the PM’s culpability and handed it over to the opposition to tear into. If the Union of India files such an affidavit and the solicitor general even argues it, why should the opposition back off in holding the PM culpable? Clearly, the DoT was being opportunistic in seeking to capitalize on the PM’s stature and credibility, but should the law officers have allowed this? Especially considering that the affidavit was filed after the CAG report was tabled in Parliament, clearly establishing Raja’s guilt. The government law officers have scripted a huge strategic blooper, causing unimaginable embarrassment to the Congress and the PM. The question to be asked is whether this is simply a blooper or is there more than meets the eye?

Raja also pulled off a “made to order” legal opinion in mid-2010 which argued that the CAG has no powers to investigate issues of policy. The CAG took no notice of this. The Supreme Court went further, by calling the CAG a “hallowed institution”, but the fact that DoT’s lawyers wrote that — whether on demand or because of their desire to please the minister — further complicated matters. The current CVC (then DoT secretary, P J Thomas) went a step ahead and chose to cite this opinion to the CAG in an attempt to thwart the CAG’s due diligence.

News reports of the CBI crying foul about joint meetings being called at the behest of law officers between them and Raja’s counsel further accentuate the rot that has set in in judicial propriety.

The private sector fares no better. Surely multibillion dollar 2G licence aspirants had access to India’s finest law firms at the time they were filling out the applications. Of the 122 licences issued in 2008, the CAG has found 85 ineligible. What was the advice being given by law firms or internal lawyers of these applicant companies? If this isn’t a story about gross incompetence then surely it is one of deep collusion.

It is now fairly clear that the telecom ministry tipped off these companies to file their applications before the September 25 cutoff date, promising to accommodate them with their glitches. The question is, should the lawyers have fallen for this bait? When the applications were going out, shouldn’t the lawyers have refused to file them in such a hurry or pointed out that the memorandum of association needs to be changed appropriately in order to meet the guidelines?

Now these companies, their lawyers and the company secretaries who signed on these “ineligible” applications could all be under a CBI investigation following the Supreme Court order of December 16, 2010.

The list of legal transgressions goes on to the issue of rollout obligation violations. These show-cause notices should have been issued a year back by DoT, which it did not do. Why was Trai compelled to do a job that the DoT’s lawyers, who are responsible for licence compliance, should have done? On the other hand, did the lawyers for the private operators caution these companies that this was a violation of the licence terms or did they give them the false comfort that the situation could be handled if push came to shove, by arguing “letter versus spirit” of the licence, “facts versus interpretation” and so forth. Or were they all morally numb, believing, like a top industrialist, that “India is becoming a banana republic” – and the DoT could be easily “managed”? Both DoT and these companies face a fresh CBI investigation on the rollout issue as well.

All of these acts call into question some very serious issues relating to the conduct and professional capacity that our legal community has exhibited both within and outside the government.

I am not a lawyer. I am a journalist. But there is no doubt in my mind that the legal community could have prevented this scam by clearly distinguishing for their clients what is lawful versus what is unlawful. This would have meant advising their clients against the actions that they took as opposed to telling them what they wanted to hear.

I am raising this issue in the hope that it will lead to further debate and introspection among those with a deeper understanding of law.

Judge for yourselves, my learned friends.

DISCLAIMER : Views expressed above are the author's own.

Author

Shalini Singh is a senior award-winning journalist. Since 2007, she has consistently exposed high-level financial scandals. While most journalists around the world have a single expose or area of specialization to their credit, Shalini has managed to create a powerful body of rigorously reported work that is impressive in scale, range, depth and impact. Of the many exposes credited to Shalini, the following continue to dominate the political, legal, academic and media discourse: the 2G spectrum scam, Coalgate, Vadragate, the Haryana land scam, the Virbhadra Singh scandal, NABARD scam, Sahara Ponzi scam. Her blog "Mindboggling" is a conversation about the tactical, often baffling and sometimes deeply philosophical behind-the-scenes aspects of events that have a direct bearing on our lives.

Shalini Singh is a senior award-winning journalist. Since 2007, she has consistently exposed high-level financial scandals. While most journalists around th. . .

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Shalini Singh is a senior award-winning journalist. Since 2007, she has consistently exposed high-level financial scandals. While most journalists around the world have a single expose or area of specialization to their credit, Shalini has managed to create a powerful body of rigorously reported work that is impressive in scale, range, depth and impact. Of the many exposes credited to Shalini, the following continue to dominate the political, legal, academic and media discourse: the 2G spectrum scam, Coalgate, Vadragate, the Haryana land scam, the Virbhadra Singh scandal, NABARD scam, Sahara Ponzi scam. Her blog "Mindboggling" is a conversation about the tactical, often baffling and sometimes deeply philosophical behind-the-scenes aspects of events that have a direct bearing on our lives.

Shalini Singh is a senior award-winning journalist. Since 2007, she has consistently exposed high-level financial scandals. While most journalists around th. . .